Ten90 Solutions LLC

I'm pretty convinced that nothing, nothing in this whole wide world could ever make me feel an ounce of sympathy for the senior management of Metro-North Railroad for the circumstances in which it finds itself, or, for that matter, with the senior management of any other railroad for the circumstances in which it finds itself.  That's the thing about railroad management:  you want the authority?  You take the responsibility.  All of it. 

But FRA keeps testing my resolve, the stoney-ness of my stoney heart; the temperature of my sang froid.

So far I'm holding fast, heart of stone, blood at glacial temperature.... look into my eye.  You won't see anything that resembles a tear forming.

So far.......

Since December 1, FRA has issued three unusual, unique even, communications to and about Metro-North Railroad.

There was the letter of December 3 expressing "condolences," "serious concerns about the recent series of accidents,"  the "unacceptable" performance of the railroad in matters of safety, "serious concerns' [again], "regarding the safety of Metro-North riders,"  "significant concerns,"and "formally direct MTA to immediately implement a C3RS [confidential close-call reporting system] program."

Quite a letter that, not just for the extreme language (for a regulatory agency), but for the methods the agency apparently believes are best suited to achieving its goal of improved safety in rail transport.

Clearly, FRA is enpowered to take whatever actions it deems necessary to immediately protect the lives and welfare of those using and providing rail service.  In the preamble to every emergency order FRA issues, FRA advises that under 49 USC 20104, FRA (as the agent of the Secretary of Transportation) is authorized to issue emergency orders when an unsafe condition or practice causes an emergency situation which involves a hazard of death or personal injury.  These orders may imposes such restrictions and prohibitions that may be necessary to abate the situation.

That's a whole lot of power, one that includes, the way I read it,  placing its representatives in positions of direct supervision, direct oversight, and excluding others it deems a risk to safety and effective supervision..

FRA opted for nothing so drastic as that; and nothing so substantial.  Instead FRA opted for "oversight" via the headlines; "regulation" by social media  (of which newspapers and television are surely the forerunners), directing the letter to the MTA, which FRA does not oversee, does not regulate, rather than Metro-North Railroad which it does oversee.  A bit odd, no?  But it sure gets headlines. 

FRA knows or should have known that while it can intend to formally direct the responsible parties on actual railroads to "immediately implement a C3RS"-- there is no such thing as immediate implementation of a C3RS program.   FRA's own "template"  for the implementation of a C3RS does not allow for an immediate, unilateral implementation of such a plan, or a declaration of intention to unilaterally implement the C3RS plan.

Every C3RS program requires agreement of several parties to the qualifications, procedures, determinations, and definitions of what makes up the C3RS.  Those parties are the railroad(s)-- not the parent, or holding company or its major shareholders--, the labor organizations represented on that railroad agreeing to the program, and FRA.  Documents have to be worded and signed and waivers have to be submitted and acted upon from FRA before certain provision of the C3RS can be placed in effect. 

So does "immediate implementation" sound a bit.... hyperbolic?   

The letter was soon followed by Emergency Order #29. In my examination of the EOs issued by FRA since 1978, Emergency Order 29 is unique, not in that it singles out one  railroad operating entity, but that it singles out one railroad's operating practices as "unsafe" when those operating practices are in fact the general operating practices across the United States, on every railroad subject to FRA oversight.  That FRA has never, even after Chatsworth, California, identified  these operating practices  as not in conformity with the intent or practice of its regulations. That FRA still does not identify the practices as presenting a hazard to safe train operations anywhere save on Metro-North Railroad, and not even completely there as Amtrak trains and crews operating over Metro-North territory are apparently exempt from the Emergency Order. So much for the old Rule N in the operating rules.  So much for a lot of things.

It sounds odd to me that a section of track requiring a deceleration in operating speed of 20 mph, not automatically enforced by a train control system, is a threat to safe train operations on Metro-North but is not a threat to safe  train operations on any other railroad, including railroads that conduct a passenger or a commuter service without cab signals and speed control.

It sounds odd to me that apparently single person operation of a locomotive through areas of such speed requirements is unsafe on Metro- North Railroad, but is not unsafe on every other railroad that is part of the general railway system of the United States. 

Just imagine how odd the "press release" from FRA, 11 December, sounds to me.  How odd is it that without any advance communication to the carrier railroad, FRA issues a notice  to the press as if it were announcing an assault on the headquarters of a drug-dealing operation, complete with a military type designation-- deep dive, rolling thunder, cedar junction, heavy lift,  pick one or all; as if it were raiding the corporate offices of a financial firm that had, say, plunged California into darkness by manipulating energy trades on the market; or fleeced the general public by selling below standard mortgage-backed securities to a government funded enterprise that went bankrupt and cost the taxpayers billions?  "Operation Deep Dive"??  Why not "Zero Dark Thirty"? Oh right, can't use that.  That's already been trademarked. 

What's next?  Flak Jackets, sidearms, and black helicopters for FRA track inspectors?

Does it sound odd to you that FRA can say in its endorsement of C3RS programs that preserving confidentiality and protecting employees from discipline create an environment where employees can freely disclose information, tell the complete story, without fear, shame, blame or harm to themselves?  And then when attempting to gather the information about the root causes behind the manifest deterioration of safe train operations on Metro-North  act in a manner that so completely undermines the  benefits of confidentiality, of protection? Does it sound odd that fear, shame, blame, with possible enforcement actions seems to be the tools of inquiry?

It's worse than odd to me.  It's a serious mistake.  It contradicts exactly what FRA proclaims as the "way forward" for railroad officers in developing a "safety culture" among employees.

David Schanoes

December 12, 2013

"Does anyone here know how to play this game?"

Casey Stengel, manager NY Mets 1962.